Judge in Indian Rape Trial Argues "a Feeble No May Mean Yes"

Indian students shout slogans during a protest against the rapes of two minor girls outside the police headquarters in New Delhi on October 18, 2015. Indian police said October 17 they have arrested two teenagers over the rape of a two-year-old girl, who was found bleeding in a park near her New Delhi home on the night of October 16. AFP PHOTO / SAJJAD HUSSAIN (Photo credit should read SAJJAD HUSSAIN/AFP/Getty Images)Photo: Sajjad Hussain/Getty Images

Women's rights advocates in India are worried about the legal precedent being set for the country's sexual assault cases after a judge overturned a man's rape conviction, saying the man's accuser didn't protest strongly enough.

Last year, Mahmood Farooqui, co-director of the Bollywood movie Peepli Live, was convicted of rape and sentenced to seven years in prison after an American student said he'd forced himself on her while he was intoxicated. In appealing the conviction, Farooqui's lawyers said both that the assault never happened and that if it did, Farooqui didn't know it wasn't consensual, The Guardianreports. According to the Times of India, Farooqui's lawyers also argued that he suffers from bipolar disorder and therefore might not have been able to understand the situation or his actions at the time of the incident. The alleged survivor, meanwhile, testified that while she said "no" and physically resisted, she stopped resisting because she was afraid Farooqui would hurt her.

In his Monday decision to overturn Farooqui's conviction, Judge Ashutosh Kumar said he wanted to give Farooqui the "benefit of the doubt" and that "instances of woman behavior are not unknown that a feeble 'no' may mean a 'yes'." The alleged survivor, he argued, didn't adequately convey her refusal; it can be "really difficult to decipher whether little or no resistance and a feeble 'no' [is] actually a denial of consent," the judge added.

Anti-sexual-assault activists are concerned that the ruling will set India back, especially as the country tries to curb rampant sexual assault and harassment. “It muddies the waters and will confuse a lot of the issues around consent,” Supreme Court lawyer Karuna Nundy told The Guardian. “What the law says is that consent may be silent, it may be non-verbal, but it has to be unequivocal. And so when somebody says no — even when you think it’s feeble — and there is no subsequent unequivocal yes, then there is no consent.”

In an editorial for the Times of India, Abhinav Garg called the decision a "slippery slope." "Whatever the merits of this specific case, the court may have set a potentially dangerous precedent by arguing that a no does not always necessarily mean no in the context of consent," he wrote. "It is easy to see defense lawyers lapping this up in cases of rape and other sexual offenses even where there the alleged victim has explicitly said no to argue that the accused may not have perceived it as a firm no." The woman and her lawyer plan to appeal the new ruling in the country's Supreme Court.